7
capacity of all, for him, this constitutes the essence of the notion of person or subject of law.
To be a person is a purpose in itself and of itself (Selbstzweck), G. Radbruch significantly adds.
For the latter the philosophical-juridical concept of person or subject of law is equal to
considering the latter as “a being” or an ‘entity’ considered a purpose in himself by the legal
code."23
25.
Therefore, human beings far from being reduced to a single object, occupy a central
position in all type of concerns and reflections. The same occurs in the conceptual universe of
Law. The human being is a subject of rights, and juridical personalism is directly related with
the exercise of the subjective rights themselves and the search for the fulfillment of common
good.24 The human being goes on to vindicate his own rights. In this sense, the
conceptualization of subjective rights, which I presented in my Concurring Opinion in Advisory
Opinion n. 17 (of 08.28.2002) of this Court, on the Juridical Condition and Human Rights of the
Child has also contributed, in a historical perspective. There I weighed in that
"(...) It may be recalled, in the present context, that the conception of individual
subjective right already has a wide historical projection, originated in particular in the
jusnaturalist thinking in the XVIIth and XVIIIth centuries, and systematized in the
juridical doctrine along the XIXth century. Nevertheless, in the XIXth century and the
beginning of the XXth century, that conception remained in the framework of domestic
public law, emanated from public power, and under the influence of legal positivism25.
The subjective right was conceived as the prerrogative of the individual such as defined
by the legal order at issue (the objective law).26
Notwithstanding, there is no way to deny that the crystallization of the concept of
individual subjective right, and its systematization, achieved at least an advance towards
a better understanding of the individual as a titulaire of rights. And they rendered
possible, with the emergence of human rights at international level, the gradual
overcoming of positive law. In the mid-XXth century, the impossibility became clear of
the evolution of Law itself without the individual subjective right, expression of a de true
"human right".27 (...)
The emergence of universal human rights, as from the proclamation of the
Universal Declaration of 1948, came to expand considerably the horizon of contemporary
legal doctrine, disclosing the insufficiencies of the traditional conceptualization of the
subjective right. The pressing needs of protection of the human being have much
fostered this development. Universal human rights, superior to, and preceding, the State
and any form of politico-social organization, and inherent to the human being, affirmed
themselves as oposable to the public power itself.
The international juridical personality of the human being crystallized itself as a
limit to the discretion of State power. Human rights freed the conception of the subjective
right from the chains of legal positivism. If, on the one hand, the legal category of the
23
.
Ibid., pages 18 and 20.
.
In effect, underlying the legal personalism is the belief in the correlationship between human
beings and common good (persona et bonum commune sunt correlata); E.G. da Mata-Machado,
Contribuição ao Personalismo Jurídico, Rio de Janeiro, Forense, 1954, pages 174-175.
24
.
25
L. Ferrajoli, Derecho y Razón - Teoría del Garantismo Penal, 5th. ed., Madrid, Ed. Trotta, 2001, pages 912-
913.
.
Ch. Eisenmann, "Une nouvelle conception du droit subjectif: la théorie de M. Jean Dabin", 60
Revue du droit public et de la science politique en France et à l'étranger (1954) pages 753-774, esp.
pages 754-755 and 771.
26
27
.
J. Dabin, El Derecho Subjetivo, Madrid, Ed. Rev. de Derecho Privado, 1955, page 64.
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